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Experts on Michigan election law say GOP proposals would create unconstitutional obstacles to voting

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Republican state lawmakers are working to push a package of 39 election-related bills through the Michigan Legislature. The bills would change state election laws in many ways, including preventing the Secretary of State’s office from mailing out absentee voter applications and requiring photo identification to vote. The bills’ authors say changes are needed in order to ensure elections are fair. But many elections experts and clerks say state elections are already fair, and the bills would make it harder for Michiganders to cast their votes.

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Stateside's conversation with Mark Brewer

Longtime elections attorney and Democratic strategist Mark Brewer says the bills are intended to disenfranchize voters.

“You can draw a straight line from the lies that Trump told about the election, through the baseless lawsuits after the election, through those legislative hearings — which create a forum for all kinds of wild claims, none of which had any basis in fact — to these bills,” Brewer says.

Stateside's conversation with John Pirich

Elections attorney John Pirich says while Michigan’s election laws might benefit from some small adjustments, these bills don’t represent repairs to the system.

“I would call them, in most instances, obstacles to voting, quite honestly,” Pirich says.

How did we get here?

In 2018, Michigan voters passed Proposal 3, which allows all Michiganders to vote absentee without having to provide a reason. This change was widely regarded as a measure that expanded voting access.

Clerks have pointed out that changes in how votes can be cast creates a need for changes in the law regarding how and when ballots can be counted as more Michiganders cast votes by absentee. Once the COVID-19 pandemic hit, election officials anticipated a further increase in absentee voting due to public health risks, and they prepared voters for the possibility that results in the general election wouldn’t be available by Election Night.

Despite record numbers of absentee voting and delays in the counting process, state election officials were able to get the job done. Some clerks have said in the aftermath that local election systems can still be improved for smoother handling of absentee ballots.

But both Brewer and Pirich say that’s not what the bills that are currently making their way through the state Legislature will accomplish.

What kinds of changes do these bills propose?

Brewer says that while there are ways to help clerks do their jobs more efficiently — like providing them with additional funding — the Republican-authored propositions in the Legislature might in fact hinder election officials’ work, especially with regard to absentee voting.

“[The bill] takes away the ability to provide prepaid postage to help voters vote,” he says. “It puts enormous restriction on drop boxes, which were a huge help last year in terms of getting ballots back on time so they could be counted by 8:00 p.m.”

Brewer adds that creating a photo ID requirement — for absentee and in-person voters — will discourage people from voting. Currently, photo ID is often requested, but not required, at Michigan polling places.

“There is just an enormous amount of evidence that the imposition of a photo ID requirement discriminates against the elderly, the poor, and minorities who have less access and less ability to get the kind of photo ID that is required here,” Brewer says.

Pirich says he finds a proposal within the package to alter the structure of local and state boards of canvassers particularly egregious. Currently the boards are made up of two Democrats and two Republicans, but the proposed change would make the boards larger. Pirich says that could open up the boards to more partisan influence, which shouldn’t be part of the ministerial role of the canvass.

“To change that structure would put our election certification process, in my opinion, in a completely disastrous state, because all of a sudden you have partisan political opponents who might be able to control or prevent the certification for their partisan reasons, which would have nothing to do with the sanctity of the election,” Pirich says.

What’s next?

The bills come amid a national push among Republicans to tighten state election laws in the aftermath of the 2020 presidential election, which some conservative leaders — along with former president Donald Trump — falsely claim was fraudulent. In Georgia, for example, Governor Brian Kemp recently signed a broad set of election laws that curtail absentee voting access and criminalize giving water or food to people waiting in line to vote.

If the Michigan elections package passes the state’s Republican-led Legislature, Governor Gretchen Whitmer is likely to veto the measures. If that happens, it’s possible the Michigan Republican Party could try to collect enough signatures to put the proposed election law changes on the ballot, at which point the Republican leadership in the Legislature could take up the ballot proposal, sidestep Whitmer’s veto, and pass it into law.

But both Brewer and Pirich say such a ballot proposal would likely be challenged in court.

“If in fact any of these bills would ever pass the Legislature and be signed into law, which I seriously doubt would ever be the case, and even if they did a ballot proposal to put these proposals on the ballot at the next general election, I dare to say most are totally unconstitutional or probably unconstitutional,” Pirich says.

Brewer says some of the issues in the bills come into conflict with the constitutional amendment that Michiganders passed in 2018 that allows absentee voting for any reason. He adds that requiring photo ID discriminates against people based on their race, age, and access to income — violating equal protection laws.

Pirich says no election is perfect, and preparing for them is a complex process.

“We really have a pretty good system,” he said. “People are saying we need to have perfection for elections to be meaningful. We're never going to achieve that goal. But they're pretty good in terms of accuracy and pretty good in regard to execution. And I think that's what we should be focusing on: making them better, not making them more difficult.”

Stateside reached out to Sen. Ed McBroom, chairman of the committe that oversaw the election bill package. We have not heard back from his office. We will have him on the program to discuss the bills if he accepts our invitation.

This post was written by Stateside production assistant Nell Ovitt. 

Stateside is produced daily by a dedicated group of producers and production assistants. Listen daily, on-air, at 3 and 8 p.m., or subscribe to the daily podcast wherever you like to listen.
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